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Legally Speaking - The aftermath

I had just arrived in New York to visit Diana and we were finishing up a beautiful ride. I remember asking Diana how much further because the hunger pains were beginning to set in. It was only going to be 10km but I was ready to eat. We were climbing up a road after getting horned from an oncoming driver not wanting to see any cyclists on the road. The last image I remember is turning up the road and riding behind Diana....BAM! (Matthew Barrowclough
Last week, racer Diana Panchyk recounted her experiences in the immediate aftermath of a crash that occurred when an overtaking truck veered onto the shoulder on which she and another racer, Matthew Barrowclough, were riding (see The brutality of the buzz). As Diana recounts, she was riding single-file with Matthew on the shoulder of the road, on one of her “beloved hill interval climbs.” She awoke hours later in the hospital. ((This week, we continue with the aftermath of the crash, beginning with a recap from the perspective of Matthew Barraclough, who regained consciousness at the scene:

Something had just happened. I didn’t know what happened but I knew that I didn’t know where I was and all I could hope was that Diana would turn around to come and get me because I didn’t know where I was. My body wasn’t right because I couldn’t breathe. Finally, my eyes opened, and I struggled to gain the oxygen I needed. Why was I on the ground? Why did my body hurt? Why couldn’t I move my shoulder? And where was Diana? Was she going to come back and get me? My recollection from that point of awakening was quite clear, surprisingly. We all hear about superhuman actions, well I think that I used mine up. With adrenaline pumping, I picked myself up, and hobbled to the road, only to see Diana in the distance and not moving. Those steps and screams of pain took everything out of me, and I fell to the ground in exhaustive pain. Before I had time to digest what had happened, several passing drivers had stopped to help. People ask “did the driver stop?” He did, but I could never get a clear face. My only reaction to the two men standing next to the truck were "why aren’t you doing anything?! We are both in a lot of pain! Why aren’t you doing anything!?"

Soon, the ambulances had arrived. I believe at this point, my system was going into post-traumatic shock as I was being my sarcastic, humorous self. Well that quickly went away as they put the neck-brace on and placed me on the board. Hard boards and the struggle to breathe through the too-small neck-brace were unbearable. Having a fractured C-7, T-4, L-5 vertebrae will do that I guess. I didn’t know what was going to happen to us. For I didn’t know anyone in the area and now I was being boarded onto a helicopter. Was Diana going to the same hospital? How am I going to contact my parents? No one knows that I am here in NY. Probably not the stuff I should stress about but moments like these bring out a rainbow of emotions.

Upon arrival at the Westchester Medical Center, the real pain and frustration started. Westchester is one of the 3 Level-1 trauma centers in New York state. Ohh goodie, I’m a level 1 trauma case. That night was pretty painful and confusing as I was left in the hallway without support and few if any answers to my questions. What I did get was lots of prodding and picking and questioning over and over. Being a teaching hospital, you are constantly barraged by our soon-to-be medical professionals. I think I told the same story 5 times. These newly-minted doctors were my age so I could relate but also give them a difficult time. At one point, I nearly blasted out “ask your classmate” because I was tired of retelling the same difficulty of pain. I guess it was my own real "Grey’s Anatomy" episode sans all the wild party nights and nurses falling for their patients.

The next six days in the hospital were surrounded by unanswered questions, lots of pain, and big steps. By the 2nd day, my family was aware and were enroute. I was told I had 7 fractures: left scapula(2x), C-7, T-4, L-5, left pelvis(2x). I’m not one to complain much about service but I never felt so alone in the hospital. The care I received from the physicians should be termed illegal. Forcing me to go without food and water for 4 days. Why!? Because they don’t transfer information to colleagues regarding my potential surgery status, which was "I was not a surgery candidate." I do remember a few really great nurses that answered my questions but the entire experience was nothing I would wish upon my worst enemy.

On the 6th day, I walked out of my room, out of the hospital and onto a plane with only the support of a crutch and my family. This was the beginning of my greatest challenge.

Annoying, repetitive questions about pain levels weren’t the only issues Matthew and Diana had to deal with. As Diana recalls,

The 12 days I spent at Westchester Medical Center after being air-lifted there were eye-opening. I never had any idea what people go through in hospitals, and the amount of red-tape a sick or injured person has to deal with despite their sickness, injuries and painkiller-induced fog. All I can say is I am extremely thankful my parents were there to help handle the paperwork. I can’t imagine what I would have done without any help! My advice to anyone out riding is to have a plan in the unfortunate case that a hospital visit is necessary. Carry insurance information someplace obvious, as well as emergency contact information. I was lax about carrying anything that day because I had someone riding with me. Before we left I asked him if he had a pump and his cell phone, and left mine at home, along with the ID I normally carry. I was thrilled to have a lighter load in my jersey pockets for a change. Of course, that was the wrong day to travel light. But now I know that any day can easily be the wrong day…. Luckily, Matthew was conscious after we were hit and could give the emergency personnel our names and information. Now I keep a copy of my health insurance card and my name and address as well as emergency contact info in my back pocket with my spare tube and money whenever I go out on the bike. I usually carry a cell phone too, but I don’t rely on it – Matthew had his that day and it shattered from the impact.

As readers of Bicycling & the Law are aware, it is of critical importance for cyclists to be properly insured. Diana discovered the importance of carrying her own insurance post-accident:

As far as health insurance is concerned, it is of course vital in any emergency situation – but as I learned, so is car insurance. In some states, no-fault insurance will cover any vehicle accident, including bicycle accidents. In my case, the driver’s low insurance policy limits could not begin to cover the injuries I suffered. If I had taken out significant underinsured driver coverage on my own vehicle policy, I would have been entitled to money from my own insurance carrier when the driver’s insurance was proven insufficient. It is difficult to think of the “what if” situations, but I advise anyone who rides and drives to look into underinsured driver coverage (“UM/UIM” coverage) and the no-fault laws in the state where you train.

I routinely advise cyclists who have automobile insurance for their car to buy the maximum amount of UM/UIM coverage available. The difference in cost between minimum and maximum coverage is almost negligible, and having the maximum amount of coverage available is essential to protect yourself from uninsured and underinsured motorists. Although drivers are required to be insured in virtually every state, many drivers are unable to afford insurance coverage, but nevertheless continue to drive. However, even when drivers do comply with the law, many drivers only select the minimum amount of insurance required by the law. Because the minimum insurance requirements are too low to cover anything but the most minor of collisions, these drivers are said to be “underinsured.” ((By maximizing the UM/UIM coverage on your auto policy, you are protecting yourself from these uninsured and underinsured drivers. Another policy that I routinely advise cyclists to hold is an “umbrella policy.” These policies provide additional coverage in very high amounts-- typically $1 million or more-- for very low premiums. The catch is that you cannot tap into your umbrella policy until you have exhausted all your other insurance coverage-- precisely the sort of policy a cyclist would need in the event of a catastrophic accident. If you don’t already have an umbrella policy, I would strongly recommend that you talk with your insurance agent about purchasing one. ((In addition to the physical injuries, cyclists involved in car-on-bike crashes often have to deal with an insurance company to repair or replace their damaged bike. Following her crash, Diana quickly learned the difficulties involved in getting the insurance company to replace her damaged bike:

My bike, which was literally smashed and in 3 pieces after the accident, was a Trek Madone that I dearly loved, and was a sponsor bike I received while riding for Advil-Chapstick. I ran into some very frustrating walls with the insurance company when it came to property damage. First of all, a bike doesn’t depreciate like a car. My bike was only a year old. I took excellent care of it. It does not have an engine that has a limited capacity for wear and tear. The drivetrain can be cleaned, maintained, and easily replaced. In any case, there is no such thing as a blue book listing values of used bikes…and anyway, most riders wouldn’t be able to find a used bike in the exact same measurements and condition from someone trustworthy!

The other wall I ran into with the insurance company was regarding receipts. They wanted a receipt for my sponsor bike. I didn’t have one. Even if I could find one, the price that my team paid would be far less than retail, because Trek was a sponsor. Since I no longer rode for Advil at the time of the accident, I couldn’t obtain another bike for the same price that would have been on any receipt from my team. Try explaining all this to an insurance company! They wanted to give me a check for about a third of the cost of my bike, to cover the bike, my clothing that was literally cut of me by emergency workers, my sponsor glasses, my helmet, etc.. Their argument about depreciation was absurd, but it is insanely difficult to logically reason with people who don’t use logic! Throw all this nonsense on top of the fact that all I wanted to do after months and months of physical therapy and intense pain, was get back on my bike!

My advice to anyone with a bike is to make sure you keep your receipts somewhere safe. If it is a sponsor bike, maybe you can print out the current retail ads for your bike for the year of your sponsorship, or obtain a catalog from the company showing the list price of the specific year and model of your bike. In the end, I had 2 different bike shops research the list price of my bike from the year it was purchase, but I still did not get a check that would cover the current retail cost of a new bike and equipment.

Following the immediate aftermath of a collision with a car, the longer-term issues a cyclist must contend with are the nature and extent of the injuries received, and recovery-- if possible-- from those injuries. As Diana recounts,
There are two main aspects of the treatment of injuries; that which takes place immediately after the accident (on the scene, in the hospital), and the continuing care afterwards. In retrospect, I think it’s a very good idea for any cyclist to develop a relationship with a massage or physical therapist that has experience dealing with insurance companies, or to ask around and find the names of some good physical therapists where you live. Once something happens, whether it’s an accident or other injury, it is often impossible to do the research. Decisions must be made quickly, and there’s only so much you can do from the confines of a hospital, or after surgery… Unfortunately, my “research” was trial and error, and I discovered that many PT places treat patients like cars on an assembly line – 10 minutes heat, move to another station, 10 minute massage, move to another station, 10 minute stationary bike, move to another station…and for most places, the goal is to get an ordinarily sedentary person back to a full range of motion, rather than try to bring an individual back to his/her state before the accident. In the end, I found a place that specialized in athletes, but that was after 7 months of insufficient treatment on the “assembly line.”

At one point, the insurance company told me they didn’t approve my continuation of PT because of a “lapse in treatment.” When I asked what the lapse was, they referred to the first couple of months after my surgery. I explained that I had 5 vertebrae fused together and that the surgeon did not prescribe PT until the back brace was removed and I was able to bend and twist once again. This is perfectly normal post-surgery procedure, yet the adjuster had a hard time understanding the rationale for this “lapse in treatment.” Insurance company doctors are supposed to carefully examine the records of their clients to avoid these types of misunderstandings, but apparently they don’t! I had to wait a month to see an insurance company doctor in order to get permission for ongoing treatment…thus creating an actual “lapse in treatment” when I really needed the treatment! How absurd!

In contrast, Matthew’s injuries, while serious, were less severe than Diana’s, and his recovery was quicker:
Unfortunately, experiences like these leave plenty to clear up, even after the hospital stay. My coach, Shawn Heidgen, gave me hope that I will get back and kept me on track in my rehabilitation. My roommates in California helped me get back to taking care of myself, and Mr. Mionske benefited me with the legal information I needed. Most importantly, my family was there for me. My brother, Michael provided me endless sarcasm and laughs, while my mom and dad gave me the support and love of getting back.

Forward to 12 months later...It was exactly 12 months and one day and I was winning the Salida Criterium in a torrential downpour which saw me ride away from the field in a solo attack with four laps to go. Nothing could have been more of an anniversary present of having my life and being able to ride my bike again. The entire 2008 season was somewhat of a miracle when I look back. Sure I had my emotional highs and lows, but I look back in perspective. On July 26, 2007, most would say that I wouldn’t ride again. Well, I knew from that day that I was going to. I want to go back to Europe and race again as I had done in Belgium and France that summer and I want to prove to myself and everyone else that someone who dreams big, trains hard, and surrounds themselves with great support can accomplish anything. 2008 was the beginning of my return and I know that 2009 will bring me new adventures in bicycle racing, and more appreciation for the life that I have and the wonderful friends and family that have stood by me throughout the years.

So what can I pass on from my experiences? Surround yourself with a supportive group. If you are going to pursue legal options, find an attorney that is familiar with bicycle law. Don’t be driven by money in settlement. Work to make riding more safe by making the community aware of riders. But this does not leave riders without rules and obligations. When riding, be respectful of drivers, follow the rules of the road, and set a good example for younger riders. Trying to fight the auto is a winless fight. Sure you might make a small gain, but one needs to remember, regardless of who is at fault, the rider is always going to lose. There are no winners in bike-auto incidents. So lose the ego, and work positively to make riding more safe.

Because Diana was injured more severely than Matthew, their recovery experiences have been different. Still, today, Diana continues on the road to recovery:

5 months after the accident, I’m doing much better, but still have physical limitations and pain, and other complications from the accident. Improvements have been slow, though as I have learned that is normal when you have 5 vertebrae fused together. I can no longer race my bike as I did before the accident. Still, I am incredibly grateful to have survived the ordeal and be alive to enjoy the things I can do. There is something unimaginably humbling about learning to walk just a few weeks after doing a 110 mile race though the French Alps…and to feel like walking up a flight of stairs is more difficult than climbing the Col du Galibier.

Riding again was monumental for me. After months in an oppressive back brace, I was finally allowed to get back on the bike. The first few months riding, I just kept looking at my watch to see how long it took before the pain outweighed the pleasure. 20 minutes turned to 40, and very slowly continued to increase. I try to focus on the positive. I can no longer do five-hour rides unless I want to be in pain for hours afterwards – but I CAN do shorter rides. I also found out I can run, and I’m enjoying learning a new sport and decided to take on some biathlons. I already did one – my “comeback” race - 11 months after the accident. My surgeon was the one who told me about it – it was at the hospital where I stayed for 12 days, and was held in order to raise money for the trauma center where I spent the majority of my time there. I can’t describe how incredible it felt to go back to the place I arrived 11 months before, unconscious and by helicopter…this time on my own terms, driving in my car and ready to race...

People always ask if I’m afraid to ride on the road after the accident. For me, the only difference is that I now know one possible answer to the “what if” question that crossed my mind on occasion when a vehicle passed by just a bit too close. I am still, as always, careful. What more can anyone do? Then again, many people reacted to my accident by telling me I should “be more careful.” That comment always irritated me. It seems symptomatic of the widespread belief that cyclists don’t belong on the road, and must quietly accept the recklessness of drivers; that by riding our bikes we are risking our lives and should not be surprised when we end up in a hospital. Ironic that I’ve known several people involved in car accidents, and whether they were at fault or not, I don’t recall anyone ever telling them they should “be more careful.” Grateful as I am for my life and recovery, I am appalled at the way the media and the law enforcers handled the accident, as well as the amount and extent of hospital and insurance red-tape. There is a phenomenon that seems prevalent in this country, where cyclists are considered “guilty until proven innocent,” and we need to work together as cyclists towards positive changes in the underlying systems. I am not sure exactly what that entails, but I hope that public awareness will help to inspire change!

Today, I never forget how close calls can become accidents, but I also have a deep appreciation for how my accident was a close call in itself…how much worse things could have been. So, when people are surprised I’ve gotten back on the bike, I am surprised at them. If anything, a second chance after a very close call is all more reason to be out on the bike enjoying life to the fullest…

We’ve all had close calls with negligent drivers, and we all feel the pain when one of our own is injured. Rarely, if ever, however, do we have the opportunity to learn from someone who’s been there. Diana and Matthew have both shown the determination of true athletes as they recover from their collision with a negligent driver who buzzed a little too close, and they have been as gracious as they are determined in sharing their stories with us. I’m sure Legally Speaking readers will join me in thanking them, and in wishing them a full and speedy recovery, and many successes to come in this sport we all love so much.

Bob

(Research and drafting provided by Rick Bernardi, J.D.)

I’d like to thank everybody who has contacted me to request my appearance at their event. I will be speaking as extensively on "Bicycling & the Law" this year as my practice will allow, and will make plans to appear before any club, bike shop, or other engagement that is interested in hosting me. If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at bookbob2speak@gmail.com (and if you would like to contact me with a question or comment not related to my speaking tour, please drop me a line at mionskelaw@hotmail.com). I’m looking forward to meeting as many of my readers as possible this year.

Now read the fine print:

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.

If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

Important notice:

The information provided in the "Legally speaking" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.